EX TEMPORE Judgment - Leave to Dispute Agreed Facts
Alistair Shipsey is charged that on 19 October 2014 he supplied the prohibited drug cannabis, being an indictable quantity, approximately 4.5 kilograms, contrary to section 25(1) Drug (Misuse and Trafficking) Ac 1985 (NSW)t. He is further charged that on 25 March 2015 he supplied cannabis, being an indictable quantity, approximately 4.983 kilograms.
The matter was set down for hearing on 15 February 2018. On that day, the offender pleaded guilty to Count 1 and admitted his guilt to Count 2, asking the Court to take that matter into account on a Form 1. The matters were stood over for sentence to 13 April 2018 on the application of Ms Kyriakos of counsel appearing for Mr Shipsey, so that a medical report and psychological report could be prepared. Mr Shipsey's lawyer, Ms Leigh Johnson was apparently ill on that day, and though it was indicated that she was on her way to court, she ultimately did not attend. Two section 9 bonds of 3 years imposed for the offences of Possess Prohibited Weapon were called up.
On 20 February 2017, Ms Johnson made application to traverse the guilty plea per section 207 of the Criminal Procedure Act 1986 (NSW) citing a ground that "the ERISP was never served and the matter should have adjourned to allow the defendant and the defence time to consider the implications." There was no application made for an adjournment on the day of hearing due to an ERISP not being served.
Actions such as lodging an application to traverse a plea can only be done on instructions. There was nothing mentioned in the traversal of plea application that the facts were now in dispute.
On 13 April 2018, Ms Hawkins of counsel appeared for the offender, instructed by Ms Johnson. It was indicated that Mr Shipsey was prepared to maintain pleas of guilty and advance the matters by way of a disputed facts hearing - the dispute was said to relate to the weight of the drugs. It was submitted that from the defence perspective, the weight was substantially less than as set out in the facts. It was conceded that Count 2 could no longer be dealt with on a Form 1 if the matters went to disputed facts hearing.
On that basis, it was clear that the traversal of plea application could not be maintained. It was dismissed. A person cannot indicate a willingness to maintain the pleas of guilty and maintain a traversal of plea application.
I indicated to both the DPP and Ms Hawkins that I was of the view that the facts tendered on 15 February 2018 were agreed facts. To confirm that, the court audio recording of 15 February was replayed in Court. The matter had been stood down since 9.30am - a period of 4 hours and 40 minutes - for the parties to hold further discussions with a view to it becoming a short matter i.e. in other words, negotiations for the matters to potentially proceed by way of a guilty plea.
At 2.10pm, the following occurred:
Ms Kyriakos: I am now instructed to plead guilty to sequence 1 and the Form 1 is yet to be signed. It is to be slightly amended.
Ms Sweeney DPP: In light of that, I hand up a set of agreed facts and Mr Shipsey's criminal antecedents.
Ms Kyriakos: If your Honour would pardon my back to have the Form 1 signed.
Ms Sweeney DPP: I hand up the Form 1. That is the Crown material on sentence.
Ms Kyriakos: I ask that the matter go over for some time…
Having confirmed that the facts were tendered on the basis of agreed facts, and there being no demurrer by defence counsel, it seemed to me that the parties were bound by that process and that the matter should proceed to sentence. I note counsel today concurs they were agreed facts.
However, given that neither party was able to assist at that time with any law to the contrary, the matter was adjourned to 24 April 2018 so that parties could make submissions as to the state of the law, and whether a disputed facts hearing could take place in the circumstances that had arisen, or whether the matter should proceed to sentence on the basis of the agreement in place on 15 February 2018.
Subsequently, I was able to consider the matter further. The Evidence Act 1995 (NSW) has no application. Per section 4 of that Act:
Courts and Proceedings to which Act applies
(1) This Act applies to all proceedings in a NSW court, including proceedings that:
(a)…
(b)…
(c)…
(d) subject to subsection (2), relate to sentencing
(2) If such a proceeding relates to sentencing:
(a) this Act applies only if the court directs that the law of evidence applies in the proceeding, and
(b) if the court specifies in the direction that the law of evidence applies only in relation to specified matters - the direction has effect accordingly.
No direction had been given in accordance with subsection (2). The provisions under sections 191 and 192 regarding agreed facts and leave do not apply.
In Environment Protection Authority v Ramsey Food Processing Pty Ltd [2009] NSWLEC 152, Biscoe J dealt with an application during a sentencing hearing for leave to contradict or qualify previously agreed facts (at [12]-[19]) :
"The Evidence Act does not apply because in a sentencing proceeding the Evidence Act only applies if the court directs that the law of evidence applies in the proceedings and no such direction has been sought or made: s 4(2). However, it is common ground that the defendant requires leave to contradict or qualify the agreed facts, and I think that the matters listed in s 192(2) should be taken into account.
As to the exercise of discretion, counsel were unable to find a case directly in point and suggested analogies… [those analogies related to applications to traverse a guilty plea].
Because of the high cogency of a guilty plea, I do not think that the approach to an application for leave to contradict or qualify an agreed fact, at least where a matter of expert evidence may be involved, requires the same degree of caution as an application to withdraw a guilty plea… [I do not understand the present application to involve expert evidence].
The onus is on the party seeking leave to contradict or qualify agreed facts to make out a case for leave including as to the circumstances in which they came to agree the facts. An application to contradict or qualify agreed facts after considered negotiation and legal advice, particularly when made as late as the hearing, challenges the integrity of the agreed facts procedure and should be approached with caution. There has to be an incentive for parties to agree facts. To allow a party to back out of such an agreement easily does not encourage agreement in the first place. In a general sense, there is prejudice in denying to a party the right to rely on something that they reasonably thought was agreed.
The fact that there was a careful process whereby the statement of agreed facts was negotiated and ultimately agreed and signed by the parties' lawyers tends to weigh against giving leave… [There is no legal requirement in the present case for the facts to have been signed]
Another factor weighing against giving leave is the very late stage of the leave application."
Difficulties frequently arise following a plea of guilty brought about in the course of or as a result of plea negotiations. Howie J in R v Palu (2002) 134 A Crim R 174 said (at [21]:
"It behoves the parties, especially after a "plea bargain", to ensure that the sentencing court is made aware from the outset of the proceedings whether there is any dispute as to the factual basis upon which the offender is to be sentenced and identify with particularity what matters are in issue. Disputed facts are to be resolved by accusatorial process upon evidence before the court, Chow v DPP (1992) 28 NSWLR 593 at 604-608. If a statement of facts is to be tendered, it should both support the charge for which the offender is to be sentenced and accord with the offence charged".
In CL v R [2014] NSWCCA 196, Adamson J stated, with Hoeben CJ at CL and Fullerton J agreeing (at [43]-[44]):
"The facts by reference to which an offender is sentenced must generally be either proved to the requisite standard, admitted or agreed: R v Olbrich [1999] HCA 54; 199 CLR 270; Weininger v The Queen [2003] HCA 14; 212 CLR 629; Gas v The Queen; SJK v The Queen [2004] HCA 22; 217 CLR 198 at [30]. The Agreed Facts were tendered by consent on the basis that they were agreed. As such they constituted the basis on which the applicant was to be sentenced. The sentencing judge was both entitled, and obliged, to sentence on the basis of the Agreed Facts.
The applicant was bound by the conduct of his counsel at the sentence hearing. Mr James indicated that the applicant consented to the tender of the Agreed Facts. An agreement as to the facts is part of the acceptance of a plea of guilty. There is no discernible basis on which the Agreed Facts ought not to have been accepted by the sentencing judge, or on which their correctness ought to be revisited on this application."
The difference between an application to traverse a plea of guilty and an application to traverse the facts is that the former relates the essential elements of the offence, and the latter is concerned with the particulars.
The history of the proceedings sheds light on how long the particulars of the matter have been available to the defence, so as to enable consideration as to how the matter would proceed.
The charges were first at court on 28 October 2015. The defendant was present and represented by Ms Johnson - an experienced criminal defence lawyer. Ms Johnson has continued to represent the defendant over the next 2 years and almost 6 months.
Chronology of Proceedings
Date Lawyer Def't present Reason for adjournment
28.10.2015 Johnson yes Brief service and consider election
2.12.2015 Johnson yes Negotiations and Legal Aid application
3.2.2016 Johnson yes Query if DPP is electing; outstanding Legal Aid application
30.3.2016 Johnson yes Brief served (partial). Balance of brief orders
8.6.2016 Johnson yes Outstanding police, DVD screening
10.8.2016 Johnson excused No info available re outstanding items
21.9.2016 Aziz yes Reply and negotiations
9.11.2016 Agent yes Reply/plea offers
14.12.2016 Johnson yes Negotiations or timetables
22.2.2017 Johnson yes Committal
22.3.2017 Johnson yes Committal/finalise facts
5.4.2017 Johnson yes Committal. Outstanding DPP response, 1 week only needed
12.4.2017 Johnson yes Full brief served, summary hearing, hearing 4 hours 1 x 1
7.8.2017 Johnson no Hearing vacated. Defendant in operating theatre. 17.10.17 hg
29.9.2017 no no (in chambers) hearing 17.10.17 vacated. To fix new date
25.10.2017 Johnson yes Hearing 1 day 15.2.2017
15.2.2018 Kyriakos counsel yes For sentence. Call up section 9 Bonds. Def't to obtain reports
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In the present case, the facts not only refer to the weight of the drug relied upon in each count, they also refer to the Form 1 matter. The weight of the cannabis supplied is referred to on pages 1, 2 and 3 of the facts. Obviously those facts were prepared after negotiations on the day of hearing. The charges were both for hearing on 15 February 2018. The decision to deal with one matter by guilty plea and the other by Form 1 is obviously a negotiated outcome. The defendant has signed the Form 1 asking that the Court take that offence into account in sentencing him for the first count.
Ms Hawkins, counsel for the defendant in this application, has helpfully prepared written submissions. In relation to paragraph 7, I agree that 'parties adduce evidence in proceedings and determine what factual matters are in dispute and are to be determined by the sentencing court'. However, that applies to hearings, trials and disputed facts hearings - not in circumstances where there are agreed facts.
Paragraph 8 refers to section 194 of the Criminal Procedure Act. I do not find that the section is relevant presently. It does not of itself permit a dispute to occur over agreed facts. It appears that the section is more concerned with subjective and objective circumstances that might lead to a non-conviction.
I do not agree with the content of paragraphs 9 and 10 (regarding applicability of the Evidence Act). There was no reason to make a direction that the Evidence Act should apply, as contemplated in section 4 of that Act. Neither party requested such a direction. The facts tendered were agreed facts. No questions were raised about the interests of justice.
I disagree with the suggestion that the facts were not formally admitted in the proceedings. Upon a plea of guilty, facts are tendered. If there is an indication prior to the facts being tendered that there is a dispute as to the facts, the Court will not receive the facts and instead set the matter down for disputed facts hearing. There is no requirement that facts, record, references, reports etc. receive an exhibit number, as submitted.
A number of cases were cited indicating that 'the sentencing judge is not bound to accept and act upon the parties' agreement as to the factual basis upon which a person is to be sentenced'. I have no doubt that is legally correct. However, that is not the consideration raised in the current matter. So far as the agreed facts are concerned, there are no facts that would cause me not to accept them. I am not attempting to make a finding of facts inconsistent with the agreed facts.
In terms of the argument about 'in the interests of justice', and 'exercising discretion in the public interest', I have considered section 192(2) of the Evidence Act as suggested in the Ramsey (supra) decision. This matter has been before the court for years. There have been numerous adjournments for negotiations, as well as consideration of facts to be finalised, and set down for hearing three times. Nothing was raised by Ms Johnson five days after the pleas were entered as to a factual dispute in the specific ground that was the basis of the traversal of plea application. That application related to the alleged non-service of an ERISP.
The fact that different counsel now instructed might take a different view of a matter, or the facts of a matter, is something that is raised too late in the proceedings. There is an expectation of finality by efficient determination of proceedings. Interest of justice is a concept that applies both to prosecution and defence.
The defence application is based upon a claim by Mr Shipsey that the weight of the cannabis leaf supplied was significantly less than that set out in the agreed facts. Submissions were made that by the time the plea was entered, Mr Shipsey was in significant pain, noting and accepting that Mr Shipsey suffered injuries of some kind in a motor cycle accident in mid-2017.
Mr Shipsey has not given evidence on this application. In Wong v DPP [2005] NSWSC 129 at [14] per Howie J, regarding an application to traverse a plea, his Honour said:
"I simply do not understand how a court can be asked to determine such an application without evidence being adduced from the defendant as to the circumstances in which he or she came to plead guilty. Nor do I understand how a court could resolve such an application in the absence of such evidence".
Regarding the last point, it seems to me that 'he who asserts must prove' to the requisite standard. I repeat the earlier quote from Ramsey (supra) at [16]:
"The onus is on the party seeking leave to contradict or qualify agreed facts to make out a case for leave including as to the circumstances in which they came to agree the facts".
I do not have evidence from Mr Shipsey concerning any potential unfairness to him in the negotiation process, nor do I have evidence of any foundation for his assertion, through counsel, that the weights of the cannabis were significantly less than in the agreed facts. Accordingly, taking into account the provisions of section 192(2), and in particular aspects of unfairness and the importance of the evidence, I am left with no evidence to enable greater weight to be given to submissions made.
I am not persuaded that leave should be granted to Mr Shipsey to have a disputed facts hearing. I do not make that decision lightly. These are criminal proceedings, and indeed serious criminal proceedings, where Mr Shipsey is potentially facing a custodial sentence. However, in the absence of persuasive evidence on the application, I find, as did his Honour in CL v R (supra) that Mr Shipsey is bound by what occurred on the day the plea of guilty was entered, when the offender was represented by counsel.
Leave is refused. The matter will proceed to sentence.
Magistrate P Stewart
Local Court of New South Wales
[3]
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Decision last updated: 13 June 2018